Ram v Pubcorp Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ram v Pubcorp Pty Ltd [2022] NSWPIC 643
APPLICANT:	Alvin Ram
RESPONDENT:	Pubcorp Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	18 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim by worker for cost of cervical surgery; employer accepts liability for incident but denies cervical injury; absence of contemporaneous report of neck symptoms in claim form or medical record; Davis v Council of the City of Wagga Wagga and Coote v Kelly, Northam v Kelly considered; Held - worker has not established that he suffered cervical injury; award for respondent.
determinations made:	1. Amend the Application herein by deleting reference to the upper extremities wherever that term appears. 2. The applicant has not established that the need for surgery of the cervical spine proposed by Dr Darwish results from injury on 21 June 2019 or from the nature of his work on and prior to 15 August 2019. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Alvin Ram (the applicant) was formerly employed as a gardener/handyman by Pubcorp Pty Ltd (the respondent) at its premises at Warwick Farm. He ceased work in August 2019 after reporting an injury to his low back in the course of his employment. He has not been able to return to work. He has undergone extensive treatment including two surgical procedures on his lower back.
On 21 September 2021, Dr Darwish, the applicant’s treating neurosurgeon recommended that he undergo a C5/C6 anterior cervical discectomy and fusion. While the respondent accepted liability in respect of the applicant’s back injury and paid him compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act), it denied liability in respect of treatment of the applicant’s neck.
By a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the respondent’s insurer denied that:
·        the applicant suffered injury to his cervical spine arising out of or in the course of his employment;
·        employment was the main contributing factor to the aggravation of a disease of the cervical spine;
·        employment was a substantial contributing factor to the injury sustained to the cervical spine, and
·        the applicant had an entitlement to weekly compensation or medical expenses as a result of injury arising out of or in the course of his employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

By these proceedings, the applicant claims the cost of the cervical fusion at C5/6 proposed by Dr Darwish on 21 June 2021. He alleges that the need for surgery is as a result of:
“a frank incident where the worker fell down a slope in the course of undertaking his duties, and physical nature and conditions of his employment”.
In a telephone conference in the matter, I was told that the pleadings were intended to convey an injury caused or materially contributed to by both the frank incident on 16 June 2019 and the nature of the applicant’s employment for the respondent prior to his cessation of work in August 2019. On neither occasion did the respondent take issue with this characterisation of the applicant’s case.
When the matter came on for a conciliation conference and arbitration hearing on 7 November 2022, Mr Barter, of counsel, appeared for the applicant and Mr Grimes, of counsel, appeared for the respondent. I was informed by counsel that the parties were unable to agree on the threshold issue of whether the applicant suffered injury to his neck/cervical spine in the course of his employment.
I am satisfied that the parties, who were represented by experienced lawyers, had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
During the conciliation conference, it was accepted that the Application to Resolve a Dispute (the Application) should be amended by deleting reference to the applicant’s upper extremities as no relief was sought in respect of those body parts in the present proceedings.
Mr Barter sought leave to call the applicant to give oral evidence. Mr Grimes opposed the application. I indicated to Mr Barter that if he wished to call evidence to address an issue which had been inadvertently omitted from his statement evidence I would consider the application. On the other hand, I would not permit oral evidence to be called which simply reiterated the applicant’s statement evidence.
As it was not suggested that the evidence was required to address an omission or ambiguity in the evidence, I declined the application. I will refer to the implications of this application and the respondent’s response to it below.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination.
(a)    the Application and the documents attached;
(b)    Reply and the documents attached, and
(c)    an Application to Admit Late Documents lodged by the applicant on 2 November 2022 and the documents attached.
There was no objection to any of the written material referred to above. Save for Mr Barter’s application to adduce oral evidence from his client, there was no application to adduce further evidence.

SUBMISSIONS

As the submissions of the parties are recorded, I do not propose to reiterate each of the arguments of counsel. I will, however, refer to the main thrust of counsels’ arguments in resolving the dispute below. Both counsel addressed by reference to the contemporaneous medical record. Mr Grimes submitted that the absence of reference in the contemporaneous record to a complaint of neck pain or a history of neck injury was inconsistent with the applicant’s allegation. He submitted that in the context of the absence of complaint, the applicant’s written evidence was unreliable.
Mr Grimes also submitted that the proposed surgery was not reasonably necessary although I did not understand this to be a prominent aspect of the respondent’s defence of the claim. Mr Barter submitted that as the surgery had been proposed by the applicant’s treating neurosurgeon it was plainly reasonably necessary.
Mr Barter submitted that while there was an absence of corroborating evidence in the contemporaneous clinical record including the medical histories of qualified doctors, there was no evidence which contradicted the applicant’s assertion that he injured his neck at work. In the circumstances, the Commission should accept the applicant’s account of the onset of his neck pain.
Before addressing the issues in dispute, it is necessary to summarise the evidence of the applicant and the reports of the medical practitioners whose opinions are critical to the respective cases. What follows is not intended to be a comprehensive survey of this evidence. Rather, I set out the salient points so that the parties can understand the way in which the condition has resolved their dispute.

The applicant

By a signed statement dated 21 March 2022 the applicant states that he commenced work for the respondent as a gardener in December 2018 and resigned in August 2019. He says that his work involved mowing lawns and other gardening duties as well as some handyman work. He states:
“I also had to carry bags of grass, mulch, branches and stuff. This was hard labour work and to carry grass and mulch I would use a wheelbarrow. It was at a large and I would be walking and carrying things all over the place.”
The applicant says that after five to six months, he “began to feel sore in my whole back and neck”. He says that he was not aware of compensation and “did not know I had an injury at that time”.
On 21 June 2019, the applicant was using a brush-cutter, when he slipped and fell down a steep slope rolling to the bottom. He continues:
“I injured my back, neck, right hip and right ankle and heel, I did lodge an incident report and always told my manager I was in a lot of pain and saw my doctors, but after I left work I learned that work did not lodge this workers compensation claim for me.”
The applicant recounts that while he continued to experience pain, he missed no time from work. He says that he complained to medical practitioners, who misdiagnosed his problem.
On 23 July 2019, he was required to purchase 20 litre bags of mulch from Bunnings and lift and carry them from his vehicle to a shed in the carpark. On 24 July 2019, he was required to reload his vehicle and transfer the bags from the carpark shed to a storage shed about 300 metres away. On 26 July 2019, he was required to transfer the mulch to the pool area which was another 300 metres away. He continues:
“All the loading and unloading that week made my whole back, neck and shoulders sore and painful. My back was the worst and I had injections and physio but none of that worked.”
After a few weeks off work, the applicant returned to work in August “still in pain”. He says that whilst he was performing his ordinary work his pain became worse. He was also concerned about a change of roster. He says that:
“After a few days I was too upset and quit my job in August 2019.”
The applicant says that he has been unable to work since that time. He changed his general practitioner as he was “not getting any help” from her.
The applicant says that while his whole “body was in pain” the medical practitioners focused on his back. He says that he told his initial specialist Dr Darwish “exactly what happened” and what his injuries were.
The applicant recounts that he had surgery to his L5/S1 disc on 25 March 2020 and again on 26 March 2021. He says that following the surgery his back pain was “a bit better but my neck pain became worse.”

Dr Bodel

Dr Bodel first saw the applicant on 29 September 2020 and provided a report of that date. He summarised the injuries on which his opinion was sought as follows:
· injury to the lower part of the back, and
· referred pain into both legs.
27.Dr Bodel took a history of the applicant falling while using a brush-cutter on 21 June 2019. He recorded that the applicant “tried to laugh it off”. But when he climbed back to the top of the slope he had some pain in the lower part of the back and right buttock. Within days of the injury he saw a general practitioner, who referred him to a rheumatologist.
Dr Bodel recorded that following the fall in June 2019, the applicant was sent to Bunnings in July 2019 to collect 20 bags of mulch. Following this work , his back and right leg pain became unbearable and the applicant resigned his employment “as he was not coping”.
Dr Bodel recorded that the applicant underwent surgery on 26 March 2020. While there was some improvement in his right leg pain he developed left leg pain and his back pain remains unchanged. Dr Bodel notes that Dr Darwish and Dr McKechnie have recommended a spinal fusion if the symptoms in the applicant’s back do not improve.
Under the heading “Current Complaints”, Dr Bodel recorded the following:
·        constant dull aching pain across the lower part of the back;
·        referred pain into both legs, and
·        prolonged lifting, bending twisting or lifting aggravates the pain.
Dr Bodel opined that the applicant suffered an L5/S1 disc lesion as a consequence of his work which had been treated appropriately. A fusion was not reasonably necessary at this stage as the applicant had no signs of radiculopathy.
Dr Bodel saw the applicant again on 3 June 2022, and provided a report of 22 June 2022. He states that he “reviewed” his previous history and the applicant indicated that it was accurate. Dr Bodel recorded:
“He also reports that while at work he did develop some neck and shoulder girdle pain although he never mentioned that to me in the past. He states that it came on ‘all on the same day’ and he has had injections of cortisone into the shoulders which has not helped. He has apparently seen a spinal surgeon about this and has been told surgery may be required and he is considering that as a treatment option. He has also seen Dr Chandra Dave about the right shoulder who has given him an injection of cortisone which did not help.”
After examining the radiological reports, Dr Bodel recorded that the applicant had suffered a C5-6 disc prolapse as a result of his fall. He said:
“This gentleman’s injuries are frank injuries in all of the injured areas.”
He expressed the opinion that the proposed C5-6 discectomy was reasonable and necessary treatment for the injury. He conceded that he did not have the local doctor’s “continuation notes” but noted there was no mention of a neck complaint at the time of Dr Darwish’s initial assessment in October 2019.
Dr Bodel said this:
“It would appear that the neck does not become part of the narrative until July 2021 when he first records with Dr Darwish that he now has neck pain and he was sent for an MRI scan of the cervical spine and lumbar spine.”
By a supplementary report of 20 July 2022, Dr Bodel considered the records of the applicant’s general practitioner, Dr Gounder. He states:
“I went right through to the completion of that set of local doctor’s notes and the last entry is dated 2 September 2020. At no stage have I seen any reference to a complaint about neck pain. I am aware that he had scans done but no complaint of pain in the neck.”
The scans to which Dr Bodel refers included a CT scan on 26 August 2019 which he stated demonstrated early spondylytic changes at the C5/6 level.
Dr Bodel concludes thus:
“To answer your specific question, therefore I would indicate that the above information does not assist in causally linking an injury to the neck to the ‘frank incident’ on 21 June 2019. It is probable that it is connected but there is no contemporaneous documentation which makes that link.”
Nonetheless, Dr Bodel expressed the opinion that in the fall described in June 2019, the applicant could have “injured his neck”. While the local doctor’s notes did not assist in linking the injury and the applicant’s neck complaints, it remained probable that the need for surgery was brought about by injuries sustained in the fall.

Dr Darwish

By a report of 29 August 2022 addressed to the applicant’s solicitors, Dr Darwish records that he first saw the applicant on 14 October 2019 when he was complaining of pain and right leg pain following an injury at work on 16 June 2019.
Prior to performing an L5/S1 discectomy on 22 April 2020, Dr Darwish saw the applicant on several occasions. On each occasion he was complaining of low back and right leg pain. Following the surgery he continued to complain of back pain with some radiation to the right leg. On 2 July 2020, however, he complained of pain radiating down the left leg.
On 26 March 2021, the applicant underwent further surgery in the form of a discectomy and decompression of the L5 nerve root. On 22 April 2021, Dr Darwish records that the applicant “continued to complain of lower back pain radiating to both limbs”.
On 5 July 2021, the applicant complained of low back pain, radiating to his right leg. The doctor records:
“He also complained of neck pain and stiffness, which he had had since the initial fall. Alvin was advised to have an MRI scan of the cervical and lumbosacral spine.”
Subsequently, he also complained of pain in his right shoulder.
Dr Darwish referred the applicant for an MRI scan which showed a C5/C6 disc protrusion with compression of both nerve roots. He expressed the view that the applicant may require C5/C6 anterior cervical discectomy and fusion.
Dr Darwish expressed the opinion that the applicant had a work-related injury to his lumbar and cervical spine on 16 June 2019. He thought that the nature of the applicant’s employment as a gardener/handyman and the fall was the cause of the applicant’s neck symptoms. He said:
“I believe that the C5/6 disc protrusion and bilateral C5/6 foraminal stenosis is degenerative in nature aggravated by the nature of his employment and by the fall on 16 June 2019. I believe his employment is the main cause of his current neck pain and arm symptoms.”
While he stated that he disagreed with Dr Powell’s opinion that work did not materially contribute to the applicant’s cervical injury, he did accept that the radiologically demonstrated changes in the cervical spine were “most likely degenerative in nature”. He considered these changes had been aggravated by the nature of the applicant’s work and the fall on 16 June 2019.

Dr Richard Powell

Dr Powell, an orthopaedic surgeon, first reported on 14 October 2019. He recorded a history that the applicant first became aware of the gradual onset of pain in his thoracic spine with radiation bilaterally to the periscapular regions after performing heavy gardening work in May 2019. He said that he recorded that his symptoms “settled over a period of 2 to 3 days”.
Dr Powell took a history of an incident on 21 June 2019 consistent with the applicant’s earlier histories. He recorded that following the fall the applicant was aware of pain in the “lower back and discomfort in the region of the left achilles”. His back pain was aggravated several weeks later when the applicant was required to lift heavy weights.
Under “Current Symptoms”, Dr Powell recorded that the applicant suffered constant pain in the midline region of his lower back which radiated across to the right side. The pain radiated into the right buttock and down the posterior aspect of the right leg to the heel.
Dr Powell expressed the opinion that the applicant’s injury was a musculo-ligamentous strain in association with an L5/S1 disc lesion. The applicant was fit for work with significant restrictions. He thought that the prognosis should become clearer over the next two to three months “as he progresses through his rehabilitation program”. The treatment proposed by Dr Darwish was “reasonably necessary”.
By a further report following a consultation on 3 December 2020, Dr Powell again recorded a history that may have been taken from his initial report. Under “Current Symptoms” he recorded that the applicant “remains symptomatic in relation to the lower back.” There was intermittent radiation of pain to both feet and restriction of motion.
Dr Powell saw the applicant again on 9 December 2021 and provided a report of 15 February 2022. On this occasion he recorded that the applicant:
“subsequently complained of the development of neck and right shoulder pain. He indicated these developed in gradual fashion in the period since the initial accident though without any specific precipitating event.”
After examining the applicant and considering the radiological evidence, Dr Powell concluded that:
“In addition to his ongoing lower back symptoms, he is also complaining of the development of cervical spine and right shoulder symptoms. This most likely reflects some underlying multi-level cervical spondylosis and rotator cuff pathology respectively.”
Once again, the doctor thought that the applicant presented in a straightforward manner. He concluded however that:
“On the basis of other information, I do not believe there is sufficient evidence to conclude that this employment represents a substantial contributing factor to a development of any specific injury involving the cervical spine or right shoulder, nor do I believe there is sufficient evidence to conclude employment would be considered to represent the main contributing factor in either the development of more permanent aggravation of pre-existing degenerative pathology in these areas. That is not to say that he does not have pathology or symptoms in relation to those areas.”

DISCUSSION AND FINDINGS

The contemporaneous medical evidence was closely scrutinised at the arbitration hearing. However, reference was also made to the applicant’s injury claim form which was signed but not dated by him after he ceased work on 15 August 2019. By that document the applicant described the fall and the subsequent aggravation of his condition by carrying bags of mulch between 23 July 2019 and 26 July 2019.

In response to the question “What is your injury/condition, and which parts of your body are affected?”, the applicant responded
“My back and legs,”
The applicant initially attended the Busby First Care Medical Centre on 2 November 2016. He initially consulted Dr Ahmed. He subsequently saw Dr Chandra Gounder. On 20 May 2019, Dr Gounder noted that he complained of:
“having pains in his lower back following the heavy wt for more than a week
started getting pains after lifting heavy weight in his workplace
o/e has mild tenderness with restricted mobility
no weakness of limbs noted
Mobic, heat pack, & rev”
On 17 June 2019, Dr Ahmed recorded that the applicant suffered from back and leg pain.
On 9 July 2019, Dr Ahmed recorded that the applicant complained of “pain in both achilles tendons and back on either side”. He noted that he was “doing heavy physical job”.
On 14 July 2019, Dr Ahmed recorded that the applicant had pain in his right achilles tendon and lower lumbar area. Once again he noted the applicant’s need to lift heavy weights at work.
On 1 August 2019, Dr Ahmed recorded that the applicant had lower back pain and leg and heel pain.
On 23 August 2019, Dr Gounder saw the applicant and recorded the following:
“discussed the x-rays cervical, thoracic & lumbar spine result in detail.
C/o still has more pains in his back
o/e has mild tenderness in his whole back
No focal tenderness
No swelling. Rang of movements are restricted due to pains
No weakness of limbs noted
Advised to go to hospital if he gets any bladder or bowel issues or weakness of legs
CT back and rev”
On 8 August 2019, the doctor recorded:
“discussed the CT cervical spine results in detail, has cervical spondylosis
discussed about supportive measures
discussed the CT thoracic spine results in detail
discussed the CT lower back results in detail – has disc bulge at L5/L5 and L5/1 with S1 nerve pinch.
discussed about possible causes & management plans
To go to hospital if any concerns.”
On 4 September 2019 the doctor recorded the following:
“c/o having more pains which is radiating to both legs
o/e has tenderness in mid and lower back
no weakness of limbs noted
no disturbance in his bowel or bladder movements
heat packs analgesics”
On 13 September 2019, Dr Gounder recorded that the applicant came to see her in respect of back pain following an incident at work. She recorded that since 26 July 2019 the applicant had pains in his lower back with radiation to both legs and more pains in both achillis area.
Following a case conference on 27 September 2019, Dr Gounder recorded that the applicant still had pain in his back and both achilles. She referred him to Dr McKechnie.
On 1 October 2019, Dr Gounder recorded that the applicant still had pain in his back. She referred him to Dr Darwish.
On 19 October 2019 following a further case conference she recorded:
“c/o having more pains in his mid and lower back
o/e has tenderness with restricted mobility
no weakness of limbs noted
no signs of bladder or bowel disturbance; heat pack, analgesics & rev”.
Dr Gounder saw the applicant again in relation to his back on 22 October 2019, 8 October 2019, 11 November 2019, 2 December 2019, 6 December 2019, 13 December 2019, 2 January 2020, 24 January 2020 and 6 February 2020. On the latter occasion, Dr Gounder reported that the applicant complained of having “more pain in his lower back”.
On 3 March 2020 the doctor recorded the applicant’s complaints of pain in the back and right ankle and noted that he had tenderness in the lower back and mid back & right ankle.
On 3 April 2020, the applicant complained of pain in the lower back with radiation to his abdomen.
On 16 April 2020, Dr Gounder noted that the applicant had undergone back surgery three weeks ago. Thereafter, Dr Gounder saw the applicant in connection with his back on 17 April 2020, 20 May 2020, 3 June 2020, 12 June 2020,19 June 2020, 26 June 2020, and 10 July 2020. The doctor recorded that the applicant had pains in his “surgery area” and the lower back. On the last of these visits the applicant requested a referral to a gym “to improve his back muscle strength”.
The applicant continued to see Dr Gounder until 2 September 2020 when the notes come to an end. That note records are that the applicant had “more pains in his back” and tenderness on examination of his back.
On 10 August 2021, Dr Gounder issued a WorkCover certificate which also referred to the applicant’s neck and right shoulder which she attributed to the fall at work “and compensating posture due to back pains”.
Dr Darwish first saw the applicant on 14 October 2019. His serial reports are largely consistent with the medico-legal report he provided to the applicant’s solicitors which I have summarised above. By a report of that date he recorded that the applicant developed lower back and right leg pain following the injury in June 2019.
On 5 July 2021, Dr Darwish recorded that he reviewed the applicant and, in addition to lower back pain radiating to the right leg he complained of neck pain and stiffness.
On 22 July 2021, Dr Darwish recorded that the applicant had “injured his neck during the same fall when he fell off a slope”. The doctor noted that the applicant was “confident” that he injured his neck in this fall and was
“going to lodge a WorkCover claim for his neck, which I support.”
It is likely that the applicant has a degenerative condition of his cervical spine. Dr Powell, of course, argued that his neck symptoms could be explained by multilevel degenerative changes in the cervical spine. Dr Darwish accepted that the changes demonstrated radiologically in the cervical spine were degenerative in nature. However, he thought these been exacerbated or aggravated by the nature of the applicant’s work with the respondent and/or the fall.
The contemporaneous record of Dr Gounder, the serial reports of Dr Darwish, the history recorded by Dr Bodel on 29 September 2020, and the history recorded by Dr Powell on his first two consultations contain no reference to an injury to the neck or of complaints of neck pain or referred pain from the neck to the arms.
The caselaw from both the Court of Appeal and the Presidential Unit of the Commission has repeatedly stated that histories in medico-legal reports and in the clinical or continuation notes of medical practitioners should be treated with caution. More so when they are inconsistent with the sworn evidence of a witness. Daniel Gerard Fitzgibbon v The Waterways Authority & Ors[1] and Davis v Council of the City ofWagga Wagga[2] are only two examples of these cases.
[1] [2003] NSWCA 294 (3 December 2003).
[2] [2004] NSWCA 34 (26 February 2004) (Davis).
On the other hand, the presence or absence of a relatively contemporaneous complaint of symptoms in a document or medical record has generally been regarded as an important measure of the occurrence and nature of injury: see, for example, the approach of the trial judge recorded in Azzopardi v Tasman UEB Industries Ltd[3]. The greater the interval between the incident and the first report of symptoms, the more difficult it is to be confident of a causal nexus.
[3] (1985) 4 NSWLR 139.
The passage of time may cast doubt on the reliability of the evidence of witnesses. In Coote v Kelly; Northam v Kelly,[4] Davies J collected a number of cases dealing with credibility and the fallibility of human memory. Many are well-known and I do not propose to recite them in this decision. They provide some logical underpinning for the reluctance to invariably accept the evidence of a witness where there is inconsistency between his evidence and the contemporaneous documentary record, even if the witnesses’ evidence is not otherwise impugned. Obviously, it is necessary to scrutinise the written record to ensure that is reliable and not corrupt. As the case law instructs the clinical notes of medical practitioners are not recorded for legal purposes.
[4] [2016] NSWSC 1447 at [100] to [102].
In this case, I find it difficult to reconcile the absence of any record of a complaint of neck pain over a period of some two years in Dr Gounder’s notes and in the histories recorded by three specialist with the applicant’s evidence that he experienced neck symptoms from the time of the frank injury.
Dr Bodel expressed the opinion that the X-ray report of the cervical spine dated 19 August 2019 and the CT scan of the cervical spine dated 26 August 2019 supported the applicant’s contention that he experienced neck pain following the injury. The reason why Mr Brkija, the chiropractor, referred the applicant for X-rays of his cervical, thoracic, lumbar and pelvic areas is not clear from the evidence. However, the clinical note referred to in the CT scan of the cervical, thoracic, lumbar, and sacroiliac joints addressed to Dr Gounder is “Ongoing back pain”. There is nothing in this note or the clinical notes of the doctor to suggest that the applicant’s neck was symptomatic at the time. If it was, there is nothing in the notes to suggest that it continued to be symptomatic over the next two years.
Mr Barter argued that while the clinical notes and the medical histories did not corroborate the applicant they did not flatly contradict is evidence. They did not, for example, contain a denial that the applicant experienced neck pain during the course of his employment. That is true.
Nonetheless, Dr Bodel and Dr Powell recorded detailed histories in their initial reports. Dr Powell recorded that in May 2019 the applicant experienced symptoms which extended to his thoracic spine and to his peri-scapular region, although the latter symptoms resolved. It would be surprising if the applicant inadvertently omitted reference to neck symptoms from this account. When the doctor saw the applicant again on 3 December 2020, he recorded that the applicant remained symptomatic “in relation to the lower back”. It must also be borne in mind that the history of initially recorded by Bodel and Dr Powell is consistent with the applicant’s claim form.
The other aspect of the hearing relating to reliability was Mr Barter’s application to call the applicant presumably for the purposes of establishing that he was a credible witness. As indicated above, I ruled that unless there was a specific omission from the evidence which need to be addressed or an aspect of it which required clarification, I would not grant leave. As Mr Grimes did not wish to cross examine the applicant, to call him simply to affirm his statement evidence and rehearse the circumstances in which he developed neck pain would not assist in the resolution of the issues in dispute.
Cross examination in the Commission has become a rarity. I accept Mr Grimes’ submission that it was unnecessary for him to cross examine the applicant before making a submission that his evidence was unreliable[5]. I remain of the view that a finding that a witness is untruthful should generally only be made in cases where the worker has been cross-examined so that he has the opportunity to defend himself. That, however, is not the case here. It is not the truthfulness of the worker but the reliability of his recollection that is under attack.
[5] see Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36 [134].
In addition to proof of injury to the neck, in order to succeed on this claim the applicant must prove that his employment was a substantial contributing factor to the injury or, if the injury be characterised as a disease, that the employment was the “main contributing factor” to the aggravation of the disease. Further, he must prove that the need for surgery proposed in 2001 results from the injury in 2019.
Proof of each of these matters is made difficult by the absence of a recorded complaint of neck injury in the clinical record and in the worker’s report of injury form. In my opinion the worker has not proven that sustained a cervical injury arising out of or in the course of his employment. In the event that there was such injury, the absence of complaint over a period of almost two years suggests an absence of causal nexus between injury and the need for surgery. It is not possible to reconcile the absence of complaint in 2019 with the florid symptom complex of neck and arm pain suggestive of nerve root compression found by the medical practitioners in 2021.
The evidence of Dr Bodel and Dr Darwish is largely based on an acceptance of what they were told by the applicant in 2021. Dr Darwish, of course, records that the applicant told him he was “confident’ that his neck symptoms commenced at the time of the injury. The balance of the evidence, however, casts considerable doubt on this account of the development of his symptoms. I prefer the opinion of Dr Powell. His evidence is more consistent with the entirety of the medical record which is to be preferred to the applicant’s recollection.
I make an award for the respondent.

[2022] NSWPIC 643

18 November 2022